The English noun “Probate” derives directly from the Latin verbs probo and probare, which means to try, test, prove, and examine. Historically, the process means the Will must be proved before the court. In the olden days, a paragraph in Latin was actually written by scribes within the Will, commencing with the words Probatum identifying that the Will was written in front of a respectable person. The earliest known usage of the English word “Probate” was in 1463, defined as “the official proving of a will.”
So, what is probate? In Michigan, it is a legal process that may be required after someone dies. The probate process provides for the orderly resolution of a person’s financial affairs after their death. The probate process addresses whether the person died with or without a Will, who are the heirs, provides for the notification to creditors, the resolution of creditor claims, the orderly gathering and marshalling of assets, and their distribution.
The first question that must be asked before filing a proceeding is whether it is even necessary. The answer to that question is based on the nature and extent of the decedent’s assets. A probate estate must be commenced only if the deceased person owned assets in his or her name alone or whether a representative is needed to investigate assets or commence a lawsuit.
The following are assets that do not flow through probate (and are not dependent on what is specified in a Will):
- assets the deceased person owned jointly (the asset passes directly to the surviving joint owner);
- assets the deceased person owned with his or her spouse (the asset passes directly to the surviving spouse);
- assets with a named beneficiary designation (for example, a retirement account with a named beneficiary or life insurance policy);
- assets held in a trust.
Estates are probated in the court of the county where the decedent resided at the time of death. If the person died out of state but had property in the state, an estate may be opened in the county in which the property is located.
The following video provides a detailed explanation of Michigan’s process:
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